in florida can an hoa board change legal fees into a special assessment

I have a situation where myself and a small handful of owners started to look into the hoa finances and found ALOT of discrepancies, ie stating time and time again books are balanced when the finances clearly show we were anywhere from $8900. to $16,000 over budget. Our board president and his sidekick kept calling the association attorney and getting bad advice, running up a $6693.21 legal bill. The new board, made up of all new owners, stating at the annual meeting, they were not themselves going to pay for what the last board did, legal or not, so they have had the attorney, give me a demand letter for the legal fees the previous president ran up. Knowing that they could not collect "legal fees" without court action, they decided by new board vote to "special assess my unit only for the legal fees.

does anyone know if this is legal under florida law 720. I don't think it is.

Raymond,

Obviously there is a lot more to this story then what you provided.

To determine if something is legal or not, contact an attorney for a legal opinion.

If you were requesting copies of documents and the Association sought advice on those documents and had the attorney copy them for you, it's possible that you could be charged some (if not all) of that cost. See FL 720.303 (5). This statute says (in part) [emphasis added]:

The association may impose fees to cover the costs of providing copies of the official records, including the costs of copying and the costs required for personnel to retrieve and copy the records if the time spent retrieving and copying the records exceeds one-half hour and if the personnel costs do not exceed $20 per hour. Personnel costs may not be charged for records requests that result in the copying of 25 or fewer pages. The association may charge up to 25 cents per page for copies made on the association’s photocopier. If the association does not have a photocopy machine available where the records are kept, or if the records requested to be copied exceed 25 pages in length, the association may have copies made by an outside duplicating service and may charge the actual cost of copying, as supported by the vendor invoice.

My suggestion, provide all the information, back story and invoices to an attorney and seek a legal opinion.
Then, either negotiate with the Board or have the attorney write a letter on your behalf and see if the Association (and you) are ready for a legal fight over the fees.

sorry typo : should read "dissenters" above.

Raymond,

I do not know whether this is legal or not but if it happened to me I would be filing an action for declaratory judgment immediately.

You had no control over the board's decision to hire an attorney. You do not even know what they conferred about and the lawyer is required to keep that confidential.

Your new board sounds every bit as stupid as your old board. The association is liable for payment of their attorney's fees regardless of who was on the board when the fees were incurred. If the old board members improperly spent association funds, as this new board implies, then they are liable for the debt. But your current board seems to sidestepping that issue by blaming it all on you.

In addition to any other actions you take, be sure to file a complaint with the State Bar of Florida. The attorney is an idiot to make demand on you for a debt of the corporation. The association is his client and he should look to them for payment for his services.

BobD4 that is exactly what they are trying to do, and it is sending a chilling effect to all owners, if you speak up YOU WILL BE DELT WITH attitude!! New board is trying to slip it all under the rug, they have no idea that they themselves can be held as liable as the past president, but that's what you get when you get old men running the board with no knowledge of the law. We are starting to call it MOB RULE and it never works

I think it's fine for the board to declare a special assessment to pay off the HOA's legal bills but ONLY if it's divided up equally among all the owners; the same as any other special assessment. For them to attempt to impose a special assessment on YOU only stinks to high heaven.

Sheila, thanks for the critiques however, we have time and time again tried to rally the troops. Our problem is that our association is 55 and over with most being widows over the age of 70, follow gossip rather than the law, have no clue what their rights are or what the law requires

I am 58 years old, had to move in to take care of my elderly father who is 88 after my mother died, he has been an owner here since 1981, I have lived in HOA's since the age of 14 and know the pitfalls.

Unfortunately, when you deal with the elderly, they tend to follow the crowd and are apathetic or hostile to anyone who tries to enlighten them of their situation.

The elderly like to be deft dumb and stupid, remain in their fantasy world where no one would hurt them nor steal from them, so they believe!

Welcome to Floridahhhh, home of sunshine and scams They wonder why so many elderly get scammed, I've got a whole HOA full of the ignorant, just waiting to be ripped off!

I appreciate all the input from the readers of this blog.

Quick answer to my original question is NO THEY CAN'T. per three Florida Law firms

Yesterday I met with a reputable HOA Attorney in New Smyrna Beach, who is now filing a complaint not only with the HOA Attorney but has also advised me to file a complaint against the HOA attorney for malpractice, being that attorneys in the state of Florida MUST follow the law and use diligence when acting.

My attorney found so many flaws in the way this attorney has acted there is no doubt that the Association attorney has not been representing our association properly.

REMEMBER ONE THING: THE ASSOCIATION ATTORNEY'S FIRST AND MOST FORMOST RESPONSIBILITY IS TO PROTECT THE ENTITY OF THE ASSOCIATION AS A BUISNES, HE OR SHE DOES NOT REPRESENT THE BORAD NOR DOES HE OR SHE REPRESENT THE OWNERS OF THE HOA. HIS OR HERS PRIMARY CONCERN IS TO PROTECT THE BUSINESS OF THE ASSOCIATION. Most boards will disagree with this statement but that is TOO BAD, it's fact.

For the record, MY ATTORNEY is taking the Board and "their attorney" to task for their failure of fiduciary duty, misuse of association funds, and misappropriation of HOA funds.

Will keep you all informed of the courts response in the future.

Melissa, first of all I see you are a former HOA President and as such, you have reiterated what every Board member I know has ever said and that is, "if you sue the board you are suing yourself and your neighbors."

That is absolutely false on all levels.

If the Board does not want to be sued, they should follow the law. Unfortunately, almost without any exclusions, I have found that most Boards are run by owners who in the beginning get on the board to do good, but end up becoming drunk with power they do not legally have.

Boards cannot arbitrarily make up rules to fit their own wants and needs, such is the case of the hoa where I am living now. THEY MUST FOLLOW LAWS WRITTEN BY THE STATE LEGISLATURE.

The Board is a servant of the owners, not their masters. Having said that, they must not make decisions that are arbitrary, that benefit themselves over the rights and best interest of THEIR NEIGHBORS.

When an owner who has a grip, they should listen with an open mind and make decisions based on the good of the association.

Boards MUST put aside personal issues and make sound BUSINESS DECISIONS, not based on Board member egos nor personal wants and wishes.

Owners have rights too, and when you have complacent and non informed owners who sit back and do nothing except follow the sheep in front of him, then someone like me who has the knowledge and the wherewithal to stand up for his rights, don't cry. I have rights, you have rights, and the neighbors have rights and when sheepole become complacent then they have no one else to blame except themselves when their assessments go up because someone who knows his rights stands up

So next time you run for the board, please keep this in mind when you again falsely tell someone you are suing yourself . You are suing so that your rights are not trampled by Board members who go beyond their rights as a board member.

Now let me get off this soap box! Have a nice day!

BTW. I am NOT your board nor anyone else here. Do not accuse us of acting like it. My HOA followed the rules and never sued or sued. My advice is to give a different perspective to consider.

Actually,

Both statements are true.

If the Board doesn't want the Association (not them, but the Association) to have legal action brought against it, they should comply with the applicable statutes and governing documents as written, as this will minimize the potential for legal action.

However, the above statement doesn't make the previous statement false.

When a member brings legal action against the Association, the Association must pay to defend itself. This may or may not be covered by D&O insurance. Covered or not, the Association now has unplanned legal expenses to pay and potentially higher premiums for D&O insurance in the future. Since the money an Association has comes from the membership, the members must pony up to pay those legal expenses. This will likely be done by deferring maintenance or special assessments. The member who brings the legal action will not only have their legal expenses but their share of the Associations legal expenses. Hence, when you sue the Association you are suing yourself and your neighbors.

Keep in mind there are times when legal action is the only available option or the only option that achieves results. Therefore, nobody is saying not to bring legal action. What I mostly read is to try to resolve the conflict at the lowest level possible (which is usually quicker and less expensive).

On a side note, most governing documents and many State statutes specify that the Association will indemnify the Directors, Officers and Committee members. This means that even if someone were to bring legal action against the individual, if the action was based on the individuals actions as a Director, Officer or Committee Member, the Association pays for their legal bills. Additionally, although anyone can certainly name individual Board members within their legal action, it's rare that they can pierce the Corporate Veil and actually make the Directors personally accountable

For all the talk of lawsuits on this forum I think very few of us have any first-hand knowledge as to what insurance coverage may be available. My understanding is that most HOA insurance is like homeowner's insurance: it covers against tort claims but not contract claims. I also have no first-hand knowledge and this is my best guess from what I have read.

For example, if the meter-reader from your electric company trips over your kids' bikes the your homeowner's insurance will cover the claim as it arises from tort liability. If the electric company sues you for not paying their bill, your homeowner's policy will not cover the claim as it arises from a contract. For this reason, I do not believe that a general liability policy would provide coverage for the association against a claim by one of its members as it is essentially a contract claim.

D&O insurance would provide some coverage but only up to a point. It is common practice to name the directors as co-defendants with the association. The bar is set very high regarding director's liability and most directors and officers are dismissed as defendants early in the course of the lawsuit. The D&O would provide coverage only until the individuals are dismissed as defendants, then the association is on its own from there.

Even if the court finds that the directors and/or officers are liable, the D&O insurance is unlikely to pay any judgment against them. An insurance company may not provide coverage for those acts that violate public policy but courts have held that insurers nonetheless have a duty to defend even when they are not permitted to indemnify.



The difference is that in this case Raymond gets stuck with 100% of the cost for services requested exclusively by the association for the sole benefit of its directors. Yes, if he sues he may end up paying 1/2 of one percent of the judgment he is awarded. That seems like a small price to pay.

Thank you Larry, that is exactly my point. the board has use of all the checkbooks in the association yet use it is to their own benefit.

By filing suit, which at this point seems to by my only option, I will get stuck with a small portion of the financial charges.

When a board uses other peoples money to defend their illegal acts, in most cases the D&O insurance will probably take over, unfortunately, the board can chose under Florida law to assess the owners for what the D&O ins does not pay

I do feel bad for my neighbors, but the large majority of them chose not to get involved when they were enlightened to the illegal activity of the board, so they will have to pay financially for their lack of attention to what their elected officials do. So unfortunate, but not my fault.

Look many of us come from "bad" HOA's. We took actions and changed them around. It was not easy and took years. Most never used lawyers to do it. Instead we got ourselves voted onto the board or as officers. Change is possible. It is just best to do it from working the very system your trying to fight.

One of my first things I did in my HOA is to bring the rules into every meeting. Did not answer questions unless referring to a rule in those documents. Which meant no knee jerk reactions. We took time and opinion before processing. My job as President was NOT to RULE the HOA but to FACILITATE the HOA needs/desires.Members wanted roads painted red, I found the bids and got the votes to fund and approve.

Now if you have issues with your board not following the rules, then I suggest educating them on them. Simply write or when speaking quote the exact reference in your CC&R s or bylaws. Force them to have to pick up the rules to know what your talking about. Bring a copy to each meeting. Know the rules before preaching the rules.

I accept your apology. Understand I do NOT like Trump, do not watch DWTS very often, nor am I a little old lady. No red hats and purple scarfs... I along with others here have changed their HOA with fight and vigor. I am just on the other side of it all now.

It is NOT You that should bring a lawsuit it should be the GROUP of you. The best way to fight a bad board is to s get a majority to vote them out or do a class action lawsuit. What you have stated was that it was you they were focusing on. So advice is coming from that direction. However, if there is a group of you that feel the same way, then group your money together to sue/remove. However, if they were trying to make you pay the bill as an INDIVIDUAL then it's you that has the lawsuit. Your the one with the actual "damage". Which a court will ONLY make you "whole" not a profit. Basically you could pay the legal bill and then sue them for all those expenses. That is what the court will be looking for. (Irony I know).

Believe it or not, I brought a lawyer to my HOA for a improper special assessment. Mind you I was a board member at the time. They were trying to levy a special assessment for a pool project that would not have cost that much nor was fully needed. There were some sharp edges on the bottom of the pool in areas. They wanted to redo the ENTIRE pool area with concrete for 8K! Plus they were also not mentioning they were charging more in the special assessment to cover other non-related costs. Special assessment was set too high for the actual project. It didn't help the new board went around lying about me to everyone to get the vote. Luckily, I had a small group behind me that helped to get a lawyer to speak/write the board. Which that alone made them step back in line to get the vote they were supposed to get even though later most owners regretted it as they were lied to.

So yes, I can support a lawsuit against a bad acting board. I did get to write it off on my taxes because it was on my investment property. (It was rental property by this point). Just make sure to hire the correct lawyer. Do NOT hire a Real Estate attorney. A HOA lawyer will cost you. You can use a general attorney or one that is schooled in corporate/business law. No lawyer is created equal so do your research on how they charge. They will charge you for phone calls and emails. So be careful on how much you contact them and leaving your name. I try to catch them in office.

Now I do have questions about the bill they are having issue with. Did you hire the lawyer? Was this a consultation with the lawyer? What is the nature of this legal bill? Did the board approve that a lawyer was to be consulted before? The HOA lawyer is NOT for every HOA member. They are JUST for the BOARD only. Most likely the ONLY one contacting them is the President or designated board member. Plus should be approved before consulting. It saves costs and confusion.

It could well be that Raymond's request for documentation had a cost attached. Might even be some had to be reviewed/redacted/approved by the HOA attorney prior to release thus the legal cost.

I do not know enough to make a decision but remember, there are two sides to a story.

Malissa CAREFULLY READ ALL POSTS I am not or have not been a board member of THIS hoa. just other HOA"S. The actions I have taken with others as a group. The Group ran away when they saw the board coming after me with the lawyers. They said they were behind me but I needed a telescope to see them.

The BOARD OF THIS HOA has violated not only the law but the Constitution.

It is obvious you want to play lawyer. Before you do, make sure you get the facts right.

So can you explain why the HOA is then focusing on you to pay this legal bill if you were NOT a board member? I like the others here are a bit hazy on those details. Did you contact the HOA attorney at some point on your own? What is this bill about? Still unclear from reading your previous post the relationship between why your on the hook for this bill and the previous board/HOA isn't? Something is missing here...

Do not keep putting words in my mouth.. It's getting annoying and I am trying to help. No where am I playing lawyer. I am giving you advice on how best to hire the best lawyer. I've been in a similar situation and had to fight my HOA. So my advice is NOT from a legal view as no one here are lawyers. It's from EXPERIENCE and some education.

We have to have more to this story to understand the boards actions against you. How else your going to fight the good fight if you don't know the other side? Devil's advocates still go home either to heaven or heck...

According to Raymond, as I understand it:

Raymond and a group of owners started to look into the HOA finances. They found what they believed to be discrepancies and started requesting "HOA records".

Once the group heard there would be lawyers and fees involved, they all backed out and left Raymond on his own at this point.

The then BOD kept calling the association attorney about Raymond's request and ran up a $6,693.21 legal bill in doing so.

An entirely new BOD came in and said they were not going to pay the outstanding $6,693.21 legal bill as they "believe" Raymond's actions caused them to incur it so they billed Raymond.

I am not sure Raymond ever got what he was after.

As I said earlier, there are two sides to every story.

Most times in life the process of forming an opinion or offering advice includes along the way gathering information and circumstances that allow some level of informed thought to take place.

Rarely, can any advice be given with any real worth simply based on a general description of events and minimal details.

To avoid explaining, to criticize others asking questions, to publicly post about the perceived limitations of those who are a few years older than you,
to voice criticism of a free public forum where people actually are trying to provide you sound advice, each does little to resolve any issue you might be having. Is also suggests that any fault lies always with someone else.

The OP here should know their next move. Like many who attempt to rally the troops in the end the troops decided a real fight was not to their liking.
Now it appears the OP's actions have come with consequences to them and them alone.

In the end, win, lose, or draw the OP, the current board and the stand by and do nothing owners will all find themselves in the same boat. Living as neighbors, adversaries, winners, losers. Less than an ideal situation.

Malissa, they did infact start a lien and collection process. So therefore I have no alternative but to defend myself or sit back and lose my home, spent two more hours ($600) with my attorney who's specialty is hoa conflicts today., he is pro owner and hates out of control boards (CASE HISTORY PROVIDED)

Florida Civil Case law is on my side as per Attorney, they started the fight without knowing the law,
the board allowed their animosity and their egos get in their own way and now everyone has to pay.

now its time they learn the law by kicking their butt in court. LET THE CHIPS FALL WHERE THEY MAY

Sorry world, its a real bad thing but if you do not stand up for your rights, others will screw you in a heartbeat and take everything you have, and this group is trying just THAT!! TOO BAD SOOO SAD

Forgot to mention that the court system sees you did not try to settle the lien or pay it as not trying to "Mitigate" your damages. Basically, your not paying to stop more damages from occurring looks bad. It's kind of like if a tree fell through your roof and you did not put a tarp over the damage. The court is going to say that the party sued for the tree damage is not responsible for your wet damages because you failed to stop additional damage. The lien being put on your house and your not paying it, makes the court not looking at it as "Principle" but your not taking action to stop further damage.

thank you bobd from up north. you obviously have a keen mind and see it for what it is. the only solution at this point is a declaratory challenge, for the portion of the ccr they claim to have the right to charge me and 2) in order to have the lien removed sue them for defamation of title which my attorney is now filing and yes we do need a good mgt co to take over, an audit by an outside company

Just got off the phone with my attorney. Seems that the Association Attorney doesn't have the stomach to take this to court.

THEY FOLDED UNDER SCRUTINY!!!!!

Moral to this story, FIGHT FOR YOUR RIGHTS AND DON'T LET OTHERS DICTATE TO YOU WHAT THEY WANT!!!!

unfortunately this board cost me $1500 in legal fees for THEIR FOOLISHNESS